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Monday, 22 March 2004
Page: 21476


Senator HOGG (1:33 PM) —I rise to oppose the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2]. I do so now and have done so on a number of occasions because fundamentally the bill is flawed, it is wrong and it picks on those who are most vulnerable in our community—those people who are casuals, who are placed in the most precarious employment and who, of course, should be deserving of the greatest protection and not the least protection that a parliament can afford people in the paid work force.

The government have thrown themselves boots and all into this piece of legislation again. It is interesting to read the second reading speech, which has not changed since the last time the second reading speech was made on the previous bill. One must ask how genuine the government really are in pursuing this issue when they have put no thought into the bill whatsoever. It is interesting to note that in the second paragraph of the second reading speech—and if the government were half genuine then they would achieve this—they said:

Maintaining six separate industrial jurisdictions makes as much sense as keeping six separate railway gauges.

At this stage the government have not moved to change the railway gauges in any of the states of Australia. Maybe they should try to achieve that first before worrying about dismantling people's rights and conditions. But then you still have the same throwaway line in the second reading speech where the government said:

A more unified national workplace relations system means less complexity, lower costs and more jobs.

Having given that throwaway line in the second reading speech they hope that if they repeat it often enough it will become the truth. They do not at any stage try to substantiate any of their claims in the second reading speech.

As I say, the fact of life is that this will greatly affect casual employees who are in the most precarious of employments anywhere in this country. In my state in particular, the state of Queensland, the federal jurisdiction has no capacity for common rule awards. Common rule awards in Queensland have a catch-all mechanism where those who are covered by a list of callings, or an application clause in particular in an industrial award, gain the benefits and rights of that industrial award. That is very important. Those state awards in Queensland, and there are many employees who are picked up by state awards where they are not covered by federal awards or federal agreements, provide access to a range of conditions such as working hours, starting and ceasing times, sick leave, rosters, unfair dismissal laws and a raft of other conditions which are bestowed upon them through the state system.

Whilst I heard that Senator Santoro has been down the road to Damascus and is looking for a unitary system now, that is quite different from when he was the state industrial relations minister in Queensland. No evidence has been put forward by the government or any of the government senators in this debate which would justify the abolition of the state system in the state of Queensland and going down the path of a federal industrial relations system separately and by itself.

The bill, as I said, takes away fundamental and basic rights of people. In the second reading speech, again which has not changed, the government referred to the Melbourne Institute of Applied Economic and Social Research study, which, among other things, found that almost a third of businesses did not know whether they were covered by federal or state unfair dismissal laws. The good part about that is that two-thirds did know whether they were covered by state or federal jurisdictions. That is indeed a very high rate of response when one considers a lot of other surveys that are undertaken. The second reading speech said:

If business managers are confused by this complexity ...

But there is no complexity at all. If an employer in the state of Queensland is not covered by a federal award or agreement then they are caught up under the state laws and the state industrial relations system. So there is no complexity. It is quite the opposite. From my long experience of being a trade union official and of still being a practising trade union official, I know that if there is a doubt in the mind of the employer they will approach their own industrial organisation of employers to find out whether they are covered by a state or federal award system. It is amazing how quickly, when faced with a difficulty, an employer gets on the phone to their representative union of employers.

Over a long period of time as a trade union official in Queensland it has been my experience that very few people in small business are affected by unfair dismissal claims, particularly in respect of casuals but even in respect of full-time employees. As the president of my branch of the SDA I sit as an honorary official at the monthly executive meeting, which I attend. Over the nearly 7½ years that I have been the branch president and over the 15 years before that that I was the branch secretary it has been my experience that very few, if any, applications come forward for casual employees in either big or small business and very few, if any, applications come forward on behalf of full-time employees where they are employed by small businesses. So what we are playing with here in terms of the government's bill is a red herring. It is something that they hope to use for political gain. I can understand that. That is what politics is about. But at the end of the day we are dealing with the life, lifestyle and livelihood of people, as I have said previously in this debate, in the most precarious form of employment. This bill undoubtedly attacks those people.

The desire to extend the qualifying period has no sense or reason and should not be entertained by this parliament. It would, in effect, make even more tenuous the contract of employment for casual employees. It would make them even more attractive to the employer, to be churned out as part of the employer's program of turning over their staff to ensure that they kept casuals up to and including the minimum period, dispensed with them and replaced them with new employees, thereby avoiding any legal obligations that they might have to casual employees beyond a set period. Regardless of the period, we are looking at people being denied their rights and having their rights removed when, in effect, as I said, they should be given more protection than any other employee, even when one considers full-time employees.

There is no evidence that this measure will boost employment opportunities in industry. There is no evidence that it will make it fairer for casuals. All it will do is put them in a worse position relative to other employees in the industry. Casuals will become the fodder of the industries. That would be a most unfortunate thing indeed. When one looks at the people who take up casual employment, you generally find that they are young people and women—people who are least able to defend themselves in many instances and who have the weakest voice in defending themselves. They are going to be placed at risk under the bill that the government are putting forward here today.

It is worthwhile turning to the submission by the Queensland government that was reported in the consideration of this bill's predecessor by the Senate Employment, Workplace Relations and Education Legislation Committee back in March 2003. The reasons that the Queensland government opposed it sum up very succinctly why this bill should be defeated. I will go through the report very briefly rather than try to paraphrase it. At page 20 the report says:

The submission from the Queensland Government points out that far from resulting in improved legislation, as the Government claims—

that is, the federal government—

the bill establishes—

the report then lists a number of dot points, the first of which says:

• two different sets of federal laws and procedures governing unfair dismissal matters, depending on the size of the respondent;

That is complex, it adds to the complexity and, as I said, leads to employers artificially maintaining the level of employment within their businesses such that they fall under one part of the legislation or the other. The second dot point says:

• different federal and state unfair dismissal regimes for incorporated and unincorporated entities;

That is straightforward. The third dot point says:

• different federal and state unfair dismissal regimes for incorporated entities, depending on whether they meet the definition of a `constitutional corporation';

Again, that is straightforward. The fourth dot point says:

• concurrent but separate federal and state jurisdiction over different aspects of workplace relations in the one business, for example a federal regime governing a business' unfair dismissals and a state regime governing workplace harassment and industrial disputes;

If that is not complex, I do not know what is. Instead of bringing together a simplified system, the government are seeking to make the system even more complex, according to this report and according to my submission in this matter. The last dot point says:

• concurrent but separate federal and state jurisdiction over different aspects of the one employee's claim (for example, the federal regime for unfair dismissal and the state regime for insufficient notice or unpaid entitlements).

So I think it is pretty clear. It is as succinct as one would need to get as to why this legislation deserves to be defeated in this chamber. But the summation really goes to the point of what this is about. It says:

Therefore, a state award employee of a constitutional corporation with a claim for unfair dismissal and withholding of wages would need to lodge claims in both federal and state jurisdictions, one for the unfair dismissal component, and the other for the wages component. Employers, who complain now about time wasted in court under the current law will find the regime proposed under this bill to be even more onerous.

That is the last thing that is needed in the industrial relations system. The industrial relations system needs to be relatively simple. It does not need the complexities that the government are trying to impose here. But even if it is simple, whether it be federal or state, it needs to respect the basic rights of those people who are least able to defend themselves, as casual employees are. They need to be protected at all costs. In a society where we have seen the growth of casual work right across a range of industries, we now see more and more people being exposed and being made more vulnerable to the quite strong power and position that an employer occupies in the relationship between a casual employee and an employer. If one looked up an appropriate legal definition of `casual employee', one would find that those people have a contract that operates on a day-to-day basis. They have never, by virtue of the definition that has been tried and tested over a long period in the industrial jurisdictions throughout this country, been placed on a firm footing in terms of their employment. It has always been precarious employment.

Contrast that with the employment that is offered to part-time or full-time employees. Part-time or full-time employees are employed on a week-to-week basis and there is a prospect there of an ongoing employment relationship. But what we see in the bills that are being dished up by this government is nothing more than seeking to weaken as much as they can the relationship between a casual employee and their employer, placing them in as great a disadvantaged position as they possibly can and thereby making them infinitely more attractive than part-time or full-time employees would otherwise be.

What is really needed for people in the work force is some degree of security. When one talks to people who are seeking employment out in the real world, one finds they want security of employment—they want a real prospect that they will be employed from one week to the next. They do not want to be placed in the invidious position where there is a sword hanging over their head each week and they know that they could get the chop purely and simply because the nature of their contract is a fickle one.

The legislation that the government have put before us today—and it is the case with other pieces of legislation, as I have said—does nothing more and nothing less than weaken the power, the dignity and the strength of those people who are employed casually. Of course, if the government had their way, they would also weaken the employment of full-time and part-time employees. That has been tried in other pieces of legislation, as mentioned by Senator Wong in her contribution to this debate. She mentioned how the government have tried to make the employees of small businesses exempt from certain provisions of the acts.

There is no justification for this whatsoever, other than to give the employer an unprecedented power over the working life, the livelihood and lifestyle of people who have been able to achieve, unfortunately for some people, no form of employment other than casual employment. Anything that prejudices casual employees needs to be exposed for what it is. It is something that clearly removes their dignity and places them at a severe disadvantage compared to other employees in the work force. The government have presented nothing new in this bill whatsoever. It is purely and simply a political stunt, regurgitated such that at some stage, if they desire, they may use it for the purposes of a double dissolution trigger. It deserves what it will get in this chamber, and that is to be beaten and beaten resoundingly.